Convicted sex offender won rare judicial reprieve

Kansas prison photo of Christopher Saemisch. Last week, a Douglas County judge found that Saemisch did not meet the criteria for indefinite commitment under the state's Sexually Violent Predator law.

Sexually Violent Predator Program, at a glance

Sex offenders who have been successful previously in challenging sexually violent predator classification:

• Ashante Cates, who was convicted of aggravated indecent liberties with a child in Johnson County, won his commitment trial in 2010. In July, Cates was arrested in Johnson County on a charge of cruelty to animals, and was convicted in November. He is currently awaiting sentencing.

• Andrew McKendrick, also convicted of aggravated indecent liberties with a child in Johnson County, had his commitment trial dismissed in 2010 after a jury deadlocked. McKendrick has since violated his parole, is back in prison, and his earliest release date is in 2013.

The Sexually Violent Predator Program, between 2008 and 2011

• Kansas inmates referred for consideration for the program: 1,202

• Offenders recommended for program by Prosecutor Review Board: 134

• Inmates committed to program: 53

• 35 of 38 sex offenders have lost their cases at trial, while 16 have stipulated or not contested commitment.

*Some cases are still pending. Numbers include anyone referred between 2008 and 2011, and don’t reflect those referred in earlier years.

When convicted sex offender Christopher J. Saemisch, 54, went to trial earlier this month in Douglas County contesting his classification as a sexually violent predator, he was facing long odds.

Saemisch was the 38th Kansas sex offender since 2008 to go to trial under the state’s Sexually Violent Predator Act.

Until last week, only two offenders had been successful in contesting their indefinite commitment to Larned State Hospital, according to a Journal-World investigation.

But Saemisch, convicted of aggravated indecent liberties with a 5-year-old child in 1999, won his case Wednesday when Douglas County Judge Michael Malone ordered his release from custody.

Saemisch’s attorney, Skip Griffey, has defended several such cases over the past couple of years and criticized the process that’s designed to treat sex offenders likely to reoffend.

“If you’re going to start locking up people because they might do something, then I might end up there too,” Griffey said.

The Kansas Sexually Violent Predator Program, started in 1994, has faced a number of criticisms over the years, but has been upheld in legal challenges that have gone all the way to the U.S. Supreme Court.

The program, which can indefinitely hold sex offenders leaving Kansas prisons who continue to pose a risk of reoffending, continues to grow. Currently, 216 offenders are in the program, and estimates say that number could near 400 by 2020.

The per-resident cost of the program, which is at Larned State Hospital, is about $70,000 per year, and an analysis of the program shows those committed to the program are more likely to die in the program than be released. Since 1994, only three offenders have completed the program, while 17 have died in custody.

The process

Douglas County District Attorney Charles Branson, who’s tried three Douglas County commitment cases, is a special assistant prosecutor for the Kansas Attorney General’s Office in such commitment trials, as is Amy McGowan, assistant Douglas County district attorney.

The two serve on the state’s Prosecutor Review Board and, along with other prosecutors in the state, select which offenders are appropriate for the program.

When a Kansas inmate who has been convicted of one of several sex offenses is close to release from prison, he or she is referred to the board for consideration for the Sexually Violent Predator Program. The team factors in the crime the person committed, behavior while in prison, as well as a psychological evaluation that helps determine a person’s likelihood of offending again, Branson said.

Between 2008 and 2011, 1,202 offenders nearing release have been reviewed by the committee. Only 53, or 4.4 percent, have ended up committed to the program, though several cases are still pending, according to documents from the Kansas Attorney General’s Office.

The process also includes a psychological evaluation at Larned State Hospital, and about half of the offenders selected by the board are declined for the program after such an evaluation.

Branson said those numbers show just how selective the board and the system are when trying to ferret out the most dangerous offenders.

“This is someone who needs long-term treatment,” said Branson of those the board selects.

“Clinical predictions are less accurate than chance,” Lave said. “You might as well flip a coin to see if a psychologist can predict.”

Lave’s research showed that sex offenders, contrary to popular belief, actually have a very low risk for offending again. Lave cites a recent study by the Department of Justice that found only 5.3 percent of sex offenders were arrested for sex offenses within three years after their release from custody.

“It’s almost certain that we have people locked up indefinitely who would never reoffend,” Lave said.

Lave also said that those committed as sexually violent predators need not necessarily have committed the type of predatory, habitual crimes that such laws were intended for.

In Kansas, anyone who is convicted of rape, sodomy, indecent liberties with a child or sexual battery is eligible for commitment. But so are people convicted of indecent solicitation of a child. That means someone may not have even sexually assaulted a person but rather propositioned or enticed a child for sex purposes, Lave said.

The majority of those committed under the Kansas law since 2008 were originally convicted of indecent liberties with a child — 30 of 53 cases. But five offenders were convicted of indecent solicitation of a child and three for sexual exploitation of a child.

“It makes people think they’re monsters,” Lave said of current commitment laws. She questions whether some of those committed offenders could be safely monitored on parole at a much lower cost.

“We only have so much money,” she said.

Branson, however, said his involvement with the process has shown him that they really are reserving the law for offenders who pose significant risks to the community.

“Will some of these be life sentences for some of these people? Definitely,” he said. “You have to balance that with public safety.”

Comments

I agree the system may have flaws, but two things about Lave's research:

".....only 5.3 percent of sex offenders were arrested for sex offenses within three years after their release from custody." The key words there are arrested and within three years. Just because they haven't been arrested does not mean they aren't re-offending. Some people do get a little smarter while in prison and can do the same behavior and not get caught for awhile after getting out. And three years is not a long time.

The types of crimes people commited to get into the program. If she is basing this on what people were convicted of, that can, and lots of times is, different than what they actually did. Convictions are based on plea bargains and deals a lot of times. Lots of these types of offenders take plea deals and prosecutors offer them to avoid a trial with underage victims having to re-live the crime.

Just as having a coin flip be as good as a phscy exam, I think it is also as good as the research. And I have seen how people do on probation with the PO's workloads. I would rather make sure they don't re-offend.

Sure there is risk that some of these people will offend again. But the logic that supports this system is flawed. That same Department of Justice report (link below) cited in the article also says that the general recidivism rate for non-sex offenders is around 68%. The justification that we lock sex offenders up because we are afraid that their crimes go undetected doesn't hold up when compared to other criminal populations whose crimes are detected at a rate of around 70%. Seems like the average liquor store robber should be locked up forever. (Yes I know the crimes are different, and that rape is notoriously under-reported, but there is more evidence that the recidivism rate for sex offenders is lower than generally thought than there is evidence that supports the rhetoric of high or guaranteed recidivism.) The problem with these indefinite incarceration laws is that they lack transparency. The treatment goals are poorly defined, and the success rates are terrible. (There are a few studies that examine why this is. Can be found on Google Scholar. No time to link them now.) The bottom line is that justice, for it to be just, must be transparent and based on evidence and proof, not rhetoric. These laws fail on all counts. Enhanced community monitoring combined with treatment programs would be better way to handle these criminal populations. I have not seen a study about the recidivism rate of sex offenders under these conditions. If anyone knows of one I would be grateful.

True. However, common sense tells us that an admission of guilt in one crime is frequently the result of a plea bargain where multiple crimes have been committed while guilt to only one has been admitted.
It is true that, too often, common sense and the law are at odds with each other.

This article fails to talk about from august 1999 until January 2006 he was sent to an out of state prison to do time for a prior court commitment.. haven't looked yet but I can only imagine what on the hell else he did. In January 2006 he was placed back in our custody and served a sentence of 6 years. Kansas gave him 6 years for an indecent liberty with a 5 year old.. also classified it as a non person felony... I would sure like to know what you need to do to commit a person felony.. sure a person felony is a violent crime committed against another person.. I say lock him up and throw away the key. Also reads that his supervision level is Low.. maybe he should be considered dangerous and they should bump his supervision level up to a high and motinor this sick minded person 24 hrs a day.. or better yet. Lock him back up.

This article fails to talk about from august 1999 until January 2006 he was sent to an out of state prison to do time for a prior court commitment.. haven't looked yet but I can only imagine what on the hell else he did. In January 2006 he was placed back in our custody and served a sentence of 6 years. Kansas gave him 6 years for an indecent liberty with a 5 year old.. also classified it as a non person felony... I would sure like to know what you need to do to commit a person felony.. sure a person felony is a violent crime committed against another person.. I say lock him up and throw away the key. Also reads that his supervision level is Low.. maybe he should be considered dangerous and they should bump his supervision level up to a high and motinor this sick minded person 24 hrs a day.. or better yet. Lock him back up.

I'm absolutely shocked that you need end the statement that fondling a five year old with a question mark, clearly implying that it is not. Exactly how hard must that touch be before it comes violent, in your mind? By definition, the touching is without consent. Therefore, it is violence. Please re-think your comment.

Sodomy? Really? At least Lawrence vs Texas makes Kansas Sodomy laws invalid. I hardly think somebody that has a bit of gay sex should be locked up for life as a violent sex offender.

On the other hand, I've got no problem with child molesters being locked up for life. Hell, shoot them into the sun for all I care, just don't give them any opportunities to have contact with children, ever. Even if they never do it again, the chance that they could ruin another persons life isn't worth it. The effects are life long for the victim.

I agree with somebodynew on one thing; frequently what a person is convicted of is far less than what they actually did because of plea bargaining. I have personal experience with seeing a man convicted of rape in a plea bargain and only receiving ten years in exchange for not being charged with another rape that involved a child under 14 and would have netted him a hard 25 year sentence under Jessica's Law. What that man actually did will never be in evidence when his case is reviewed as there will be no record of it.